- The educators were found to be deemed permanent employees despite being kept on fixed term contracts for years.
- The school's claim that their contracts expired at the end of 2020 was rejected.
- Compensation equal to 12 months' remuneration for each educator was restored.
A group of teachers who spent years working on repeatedly renewed fixed term contracts have succeeded in restoring compensation awarded to them after it was found that they were deemed permanent employees and had been unfairly suspended.
The dispute involved Prosper Maphosa and fellow educators employed by New Model Private College in Doornfontein, Johannesburg. Some of the teachers had worked for the school under annual contracts for as long as nine or 10 years.
The educators challenged the school's decision to keep them away from work after allegations that they had participated in an unprotected strike in December 2020. They denied taking part in any strike action.
Years of fixed term employment
In December 2020, the school informed the educators that their contracts would end on 31 December and invited them to apply for positions for the following academic year.
The teachers submitted applications but received no response. At the same time, the school issued letters accusing them of participating in an unlawful strike and warned that disciplinary action could follow.
Although they received payment for December 2020, they were not permitted to return when the school reopened in January 2021. The educators referred an unfair suspension dispute to the CCMA.
The commissioner found that they had been unfairly suspended and awarded compensation equal to 12 months' remuneration. The school successfully challenged that award in the Labour Court, which found that the educators' contracts had expired and that they could therefore not have been suspended. The educators appealed.
Deemed permanent employees
The appeal centred on Section 198B of the Labour Relations Act, which protects lower earning employees from being kept on fixed term contracts for extended periods without a valid justification.
The evidence showed that the educators earned below the statutory earnings threshold and had been employed on rolling annual contracts for many years.
There was no evidence that the school had a lawful reason to continue employing them on fixed term contracts year after year.
Judge A van Niekerk, for the Full Bench, found that the law deemed the educators to be employed indefinitely.
The judgment recorded, "There is nothing on record to suggest that Section 198B was not applicable to the appellants."
The judge further held, "The first respondent's defence to the claim of unfair suspension, namely the alleged expiry of their fixed term contracts on 31 December 2020, had no basis in law."
According to the judgment, the educators automatically became employees of indefinite duration because they had been employed on fixed term contracts for far longer than the period allowed by law.
The judgment explained, "The appellants were deemed to be employed by the first respondent on an indefinite basis and automatically became so employed."
Compensation restored
Although the appeal tribunal noted that aspects of the commissioner's reasoning could be questioned, it found that the final conclusion was correct.
Judge Van Niekerk said, "Her conclusion that the appellants had in fact been suspended and that their suspensions were unfair must stand."
The appeal was upheld and the earlier challenge to the CCMA award was dismissed. As a result, the compensation awarded to the educators remains in force.
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